The First Civil Senate of the Federal Court of Justice, which is responsible inter alia for copyright law, has ruled that it is inadmissible to use sounds or tones recorded on another person's sound carrier for one's own purposes by way of so-called free use if it is possible for an average music producer to produce an equivalent sound recording himself.
The plaintiffs are members of the music group "Kraftwerk". In 1977, the group released a sound carrier containing, among other things, the song "Metall auf Metall" ("Metal on Metal"). The 2nd and 3rd defendants are the composers of the song "Nur mir" (Only me), which the 1st defendant recorded in two versions with the singer Sabrina Setlur. These pieces of music are on two recordings released in 1997.
The plaintiffs claim that the defendants electronically copied ("sampled") an approximately two-second rhythm sequence from the title "Metal on Metal" and added it to the title "Only Me" in continuous repetition, although it would have been possible for them to record the adopted rhythm sequence themselves. They believe that the defendants have thereby infringed their rights as producers of sound recordings. They have filed a claim against the defendants for injunctive relief, a declaration of their liability for damages, the provision of information and the surrender of the sound recordings for the purpose of destruction.
The district court upheld the action. The court of appeal dismissed the appeal. On appeal, which was allowed by the Court of Appeal, the Federal Supreme Court reversed the Court of Appeal's decision and referred the case back to the Court of Appeal for a new hearing and decision. In the reopened appeal proceedings, the Court of Appeal again confirmed the defendant's conviction. The Federal Supreme Court today dismissed the defendant's appeal.
According to the Federal Court of Justice, the defendants interfered with the plaintiffs' right to produce sound carriers (Section 85 (1) UrhG) by sampling two bars of a rhythm sequence of the title "Metall auf Metall" from the sound carrier produced by the plaintiffs and adding them to the track "Nur mir". The defendants cannot successfully invoke the right of free use (§ 24.1 UrhG). Admittedly, in analogous application of this provision, the use of other sound carriers without the consent of the rightholder may be permitted if the new work is so far removed from the sounds or tones borrowed from the sound carrier used that it is to be regarded as independent. However, according to the case law of the Federal Court of Justice, free use is excluded if it is possible to record the sound sequence recorded on the phonogram oneself. In this case, there is no justification for an interference with the sound carrier producer's entrepreneurial performance. In such a case, no right to use the sound recording without the consent of the phonogram producer can be derived from the freedom of art protected by Article 5.3 of the Basic Law either. The Court of Appeal rightly assumed that in order to assess the question of whether it is possible to record a sound sequence oneself, it is necessary to consider whether it is possible for an averagely equipped and competent music producer at the time of the use of the third-party sound recording to produce one's own sound recording which, when used in the same musical context, is equivalent to the original from the point of view of the addressed public. The Court of Appeal assumed without error of law that the defendants would have been able to record the sequence taken from "Metal on Metal" themselves according to these standards.
Judgment of the Federal Court of Justice of 13 December 2012 - I ZR 182/11 - Metal on Metal II
Lower courts:
Hamburg Regional Court - Judgment of 8 October 2004 - 308 O 90/99
OLG Hamburg - Judgment of 17 August 2011 - 5 U 48/05 - GRUR-RR 2011, 396 = ZUM 2011, 755
Source: Press release of the BGH
Goldberg Attorneys at Law 2012
Lawyer Michael Ullrich, LL.M. (Information Law)
Specialist lawyer for information technology law
E-mail: info@goldberg.de
